We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Magazine publishers catch a break

Freelance writers, photographers and illustrators often sell only one-time publication rights in their works to magazine publishers. And often, that's all the magazines need; the work appears in an issue, and is then forgotten as the magazine goes on to other works in subsequent issues. But that was in the old days of microfilm and microfiche, before electronic database storing of the contents of old issues.

Back in 2001, in deciding a lawsuit brought by some authors claiming that the storing of their articles by New York Times Magazine, Wall Street Journal and other publications in popular databases such as Nexis was somehow a new publication, for which the magazine never purchased rights, the U.S. Supreme Court agreed with the authors that this form of storing was copyright infringement (the Tasini case). What the case basically said was that if the articles were reproduced in a database in the same form and appearance as originally published, that would be permissible, but if the articles were taken out of their original surroundings and listed separately (as had been done with lists of articles appearing in the defendant magazines), that was a new publication and therefore copyright infringement.

That same year, in a decision that predated the Tasini rule, the 11th U.S. Circuit Court of Appeals upheld a judgment against National Geographic for placing photographs it originally purchased from photographer Jerry Greenberg on a one-time rights basis in NG's collection on CDs of every back issue of their magazine, from the very first to the current. NG went back to the 11th Circuit, which eventually decided that NG had complied with the Tasini requirement and reversed its prior ruling.

Greenberg appealed, claiming that NG had added such items as an index, so this was a new publication. Just a few days ago, the 11th Circuit once again issued a ruling, only 7 years after its first decision, again saying that National Geographic had complied with the Tasini requirements and was not guilty of copyright infringement.

What publishers should take from this latest decision is that if they want to archive their contents, whether for future research or only for historical purposes, they can do it -- but only if they do it in a certain prescribed way. That includes carefully constructing the archive in such a way that it faithfully recreates the appearance and contents of the magazine as it originally appeared. Or, of course, they can also renegotiate with the authors, photographers, illustrators and other contributors and run the risk that those people will say "no."

Related topic hubs

Compare jurisdictions: Litigation: Enforcement of Foreign Judgments

"This is a very good resource and I appreciate receiving it everyday. Each newsletter has a great deal of content and the daily feed allows you to 'pace' yourself. The content is relevant to the areas that I address and the articles are written by counsel who are very experienced in these areas and can communicate in a meaningful and effective way."